Copyright c 1991, 1992 by Nicholas Johnson
ETC.:  A Review of General Semantics [quarterly journal of the
International Society for General Semantics, Box 728, Concord CA
94522], Winter 1991-92, p. 386

Frauds and Facts:  Broadcasters As Public Trustees and Audience
Network

Nicholas Johnson

[Testimony of former FCC Commissioner Nicholas Johnson before the
House Subcommittee on Telecommunications and Finance, Washington,
D.C., May 13, 1991.]

I thank the Subcommittee for the invitation to appear and for undertaking
this review of broadcasters' responsibilities and Ralph Nader's Audience
Network proposal. As a former FCC Commissioner I've thought about
these issues for 25 years; as a law professor I talk about them for a
semester, in two-hour blocks. Now given five minutes to tell you all I
know, I offer this scrapbook of verbal snapshots (and lengthier
"supporting material" for the printed record). -NJ

Fraud: "Broadcasters should be freed from the heavy hand of government
regulation; they are no more 'public trustees' than a shopping mall
discount store."

Fact:  (1) That broadcasters are "public trustees," or that "the public owns
the airwaves," are not figments of fantasy and figurative speech. They're
based on the very first section of the broadcasting provisions of the
Communications Act of 1934, designed to:

"maintain the control of the United States over all the channels of radio
transmission; and to provide for the use of such channels, but not the
ownership thereof, by persons for limited periods of time, under licenses
granted by Federal authority, and no such license shall be construed to
create any right, beyond the terms, conditions, and periods of the license."

Just as most of you are re-elected, so do most broadcasters have their
licenses renewed. But they have no more _right_ to a license, or its
renewal, than you have to be elected or re-elected.


(2) A license based on that act represents a contract between the
broadcaster and the public from which both are supposed to benefit. (a)
The broadcaster gets monopoly privileges -- and profits (once estimated at
an industry average 100% return per year on depreciated capital). What
other "competitive" business can have its competitors thrown in a federal
penitentiary? (b) In exchange, the broadcaster, as trustee of such valuable
public property, pledges to serve "the _public_ interest," as a community
resource, rather than constant profit maximizing programming.

(3) No broadcaster (or FCC Commissioner), to my knowledge, wants to
do away with the part of that contract that provides the monopoly
privileges and profits. They like that part, and panic at the prospect of
genuine open competition in broadcasting (as broadcasters fought cable,
and cable fights satellite dishes). No, it's just that part about _their_
obligations, the _quid pro quo_ for those privileges and profits, that they
want to repeal. They are like the teenagers who are given privileges to use
the family car in exchange for some minimal household chores, and then
want to modify the arrangement so they can stop work but still drive.

Fraud: "With today's electronic miracles, range of choice, and far more
broadcast stations than newspapers, 'scarcity' (of frequencies) is no longer
a valid rationale for regulating broadcasting."

Fact: There are a number of reasons why "scarcity" is as much of a
limitation on broadcasting today as it ever was.

(1) Why is it that $1 million worth of studio and transmitter can be sold
for $100 million or more? Because of "scarcity," and the FCC license to
enjoy its monopoly profits. Scarcity not only exists, it has a dollar value.

(2) There are economic hurdles in entering any media distribution
business, whether newspapers or video rental stores. Broadcasting is the
only one in which there are more people who _do_ have the resources
than are permitted entry.

(3) Audience Network addresses another aspect of scarcity. So long as
broadcasters insist on the right to censor from the airwaves whomever
they choose, the medium will never represent the full range of diversity,
the lack of "scarcity," available to street corner speakers or those using
machine copiers.

(4) Genuine diversity, or lack of scarcity, is not merely a matter of
numbers of outlets. So long as stations are predominantly owned and
operated by white, upper middle class, middle-aged, male Rotarians they
are unlikely to eliminate the scarcity of diversity in programming.

(5) Even with diversity of ownership and the best of intentions,
programming decisions respond to incentive systems. An
advertiser-funded media will, inevitably, need to program in a fairly
narrow and predictable way regardless of numbers of outlets. Genuine
diversity requires alternative _structures_ and incentive systems. Audience
Network is one. Conventional public broadcasting is another. Pacifica and
other community operated stations are a third. No one can dispute the
scarcity of these, and other, alternative structures for broadcasting.

Fraud: "The Fairness Doctrine and comparable broadcast regulation
restricts the broadcasters' First Amendment rights."

Fact:  The broadcasters' suggestion that _their_ First Amendment rights
are somehow infringed by the Fairness, Equal Opportunity, Personal
Attack and comparable regulations is among the more outrageous of their
arguments.

Broadcasters are free to say anything they want over their licensed
stations. They can strike out with slashing, vicious personal attacks against
whomever they choose. They can support their favorite candidates and
causes with all the creative energies a broadcast station can muster. They
can editorialize. They can choose their times and formats without restraint.
There is no restriction on _their_ First Amendment rights.

No, the issue is not the broadcasters' freedom to speak, the issue is the
broadcasters' right to censor the speech of others. The Supreme Court has
said, "There is no right of private censorship in a medium not open to
all." The broadcasters' disagree -- as do the cable operators, telephone
companies, and virtually every other mass media.

Fraud: "The marketplace is the best regulator of programming choices."

Fact: (1) For starters, there is no marketplace; "there's no there there."
There _are_ marketplaces for books, records, and videotape rentals. They
can be, and are, measured and reported. But broadcast programming
cannot be purchased. Broadcasting is not about the audience as customer
and the programming as product. Broadcasting is about the advertiser as
customer and the audience as product -- the delivery of viewers at a "cost
per thousand" to watch commercials.

(2) As Tom Smothers has said, "The choice you'll never know is the
choice you'll never make." Even with cable's many channels, the range of
genuine choice available to American viewers is remarkably narrow.
Television is not in the business of showing the audience the full range of
its potential diversity and asking us to choose. It is in the business of
limiting and then manipulating our choice.

(3) The ideas of the marketplace do not constitute a "marketplace of
ideas." As explained above, programming produced by a relatively narrow
slice of the American population, for the purpose of maximizing ratings
among those shares of the audience that can be sold at the highest cost
per thousand, is scarcely a "marketplace" of any sort.

(4) No one questions the right of business to _participate_ in the nation's
dialogue. What is questioned is its right to dominate that dialogue to the
exclusion of all other segments of society. We are a nation of corporate
managers, yes; but we are also a nation of working class and poor, of
conservationists, educators, amateur artists of all kinds, Native Americans
and immigrants, farmers, youngsters and the elderly. They, too, deserve to
be represented, and, yes, participate, in broadcasting's "marketplace" --
regardless of their buying power and cost per thousand. And that's what
Audience Network is designed to do.

(5) Every nation recognizes the special role and responsibility of
broadcasting. Most view its power as too precious to be left to market
forces, and operate it as a public corporation. Our experiment with citizen
licensees as public trustees is the exception. One would think broadcasters
have the greatest stake in ensuring its success. The Pope's latest
Encyclical notes capitalism's tendency to "consumerism, when people are
ensnared in a web of false and superficial gratifications rather than being
helped to experience their personhood in an authentic and concrete way"
and its failure to serve those "many human needs which find no place on
the market." Nowhere is this more true than in broadcasting.


Fraud: "Who chose you? A handful of malcontent critics of broadcasting
are an illegitimate representative for millions of contented viewers."

Fact:  When broadcasters are willing to come forward with a workable
means of democratic participation in broadcasting their complaints will
deserve more serious consideration. Their pattern, however, has been to
oppose any and all proposals for reform while offering none of their own.
So long as they continue to question the legitimacy of _any_ source of
democratic control -- whether Congress, the Courts, the FCC, or those few
citizens with energy and resources to organize -- they cannot be expected
to be taken seriously.

Fraud: "Broadcasters _do_ give entry to the public, with call-in shows,
guest appearances, news interviews, letters, answers to editorials and so
forth. There's no problem here."

Fact: The basic fallacy here is the failure to distinguish matters of grace
from matters of right. The problem is not that no broadcaster ever puts on
the air anyone who is not an employee. The problem is the possibility of
abuse and conflict of interest when the criteria for choice are left solely to
the whim or self-interest of the broadcaster.

The issue is similar to that involved in the First Amendment. Much can
be, and is, said without the need for reliance upon its protection. The
problem arises, and only arises, when someone wants to silence someone
else. What we are talking about in broadcasting, as with the First
Amendment itself, is a legally enforceable right of entry, not entry as a
matter of grace from the broadcaster.

Fraud: "Broadcasting doesn't need regulation, because most broadcasters
are responsible operators."

Fact: Examples of responsible broadcaster programming are commendable
-- and totally irrelevant to the issue. No obligations, or regulations, are
created for the responsible. We don't need 15 mph speed limits past grade
schools for most drivers. The remote possibility of killing a child is more
than enough to slow them down. Similarly, many responsible broadcasters
couldn't violate the Fairness Doctrine if they tried. The reason we have,
and enforce, school zone speed limits, and public trustee responsibilities
for broadcasters, is for those who _don't_ have that sense of
responsibility.

*** Copyright c 1992 by Nicholas Johnson.  Conditions:  This material is
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